The Difference Between Express Written Consent and Express Consent (TCPA)

In the world of lead generation and telemarketing, compliance with the Telephone Consumer Protection Act (TCPA) is critical. One of the most common areas of confusion is understanding the difference between express written consent and express consent under TCPA regulations. Failing to obtain the correct type of consent can lead to severe penalties, lawsuits, and reputational damage.

This blog post will clarify the key differences between these two consent types, their legal implications, and how businesses can ensure compliance. With DynamicTracking, companies can confidently track, document, and verify TCPA-compliant consent, reducing compliance risks and improving lead quality.

Key Takeaways

• Express written consent is required for autodialed marketing calls and texts, while express consent is sufficient for non-marketing communications.
• TCPA compliance mandates clear and conspicuous consent language, especially for marketing purposes.
• Proving TCPA consent is essential for mitigating legal risks, requiring businesses to maintain proper records.
• DynamicTracking provides robust consent verification solutions to ensure compliance and protect businesses from lawsuits.

Understanding TCPA and Consent Requirements

What is TCPA?

The Telephone Consumer Protection Act (TCPA) was enacted to protect consumers from unwanted telemarketing calls, texts, and faxes. The Federal Communications Commission (FCC) enforces TCPA regulations, imposing strict rules on businesses that engage in telemarketing and lead generation.

Why Consent Matters

Consent is the cornerstone of TCPA compliance. The type of consent required depends on:

• The method of communication (autodialed call, text, prerecorded message, manual call)
• The content of the message (marketing vs. informational)
• The recipient (consumer vs. business)

Express Written Consent vs. Express Consent

What is Express Consent?

Express consent refers to a consumer providing verbal or written permission to receive calls or messages. This applies mainly to non-marketing communications, such as appointment reminders or delivery notifications.

Examples of Express Consent:

• A customer provides their phone number while making a purchase.
• A person submits an online form requesting a callback.
• A customer verbally agrees to receive account-related texts.

Limitations of Express Consent:

• It does not apply to telemarketing or sales calls.
• It must be given voluntarily and not obtained through coercion.
• The burden of proof is on businesses to demonstrate consent was obtained.

What is Express Written Consent?

Express written consent is a higher standard of consent required for telemarketing or promotional messages made via an autodialer, prerecorded message, or SMS marketing.

Requirements for Express Written Consent:

• Clear and conspicuous disclosure: The consumer must understand they are agreeing to receive marketing messages.
• Affirmative action: The recipient must take deliberate action (e.g., checking a box, signing electronically).
• No conditions on purchase: Consent must be freely given, separate from any transaction.

Examples of Express Written Consent:

• A website form that includes a checkbox stating: “I consent to receive marketing calls and texts from [Company] at the number provided.”
• A digitally signed agreement permitting SMS promotions.
• A verbal recording confirming opt-in for telemarketing.

Common Compliance Mistakes:

• Assuming prior business relationships count: Even if a customer previously made a purchase, written consent is still required for marketing.
• Pre-checked opt-in boxes: Consent must be an affirmative action taken by the consumer.
• Failing to maintain consent records: Businesses must keep detailed records to prove compliance.

Proving TCPA Consent: Best Practices

Ensuring TCPA compliance is more than just obtaining consent—it’s about verifying and documenting it.

How to Properly Document Consent

1. Maintain digital records: Store timestamps, IP addresses, and opt-in agreements.
2. Record verbal consent: Use call recordings with time-stamped confirmations.
3. Implement a reliable consent tracking system: DynamicTracking provides real-time consent verification to prevent compliance risks.
4. Regularly update consent agreements: Keep opt-in disclosures aligned with FCC and TCPA regulations.

How DynamicTracking Helps

DynamicTracking simplifies compliance with:

• Real-time consent verification: Ensure each lead meets TCPA standards before initiating contact.
• Automated consent storage: Securely store and retrieve proof of consent as needed.
• Audit trail for legal protection: Defend against TCPA-related lawsuits with clear documentation.

Common TCPA Violations and Penalties

Failure to comply with TCPA consent rules can result in severe penalties:

To avoid these risks, businesses must implement strict compliance protocols and track consent efficiently.

Wrapping Up

Understanding the difference between express consent and express written consent is crucial for businesses engaging in lead generation and telemarketing. While express consent is sufficient for non-marketing messages, express written consent is mandatory for autodialed sales calls and marketing texts.

To stay compliant, businesses must:

• Obtain clear, documented consent before contacting consumers.
• Keep accurate records to prove consent in case of disputes.
• Use DynamicTracking’s consent verification solutions to minimize risk and maintain TCPA compliance.

By prioritizing compliance, businesses not only avoid hefty fines but also enhance consumer trust and lead quality. Ready to ensure compliance? Contact DynamicTracking today!